National Green Tribunal
Shailendra Singh Bisen vs State Of Madhya Pradesh on 29 July, 2021
Item No. 01 to 04
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No139/2013 (CZ)
Akhil Bhartiya Vidyarthi Parishad & Ors Applicant(s)
Versus
Union of India & Ors Respondent(s)
WITH
Original Application No. 30/2014 (THC)
Shailendra Singh Bisen & Anr. Applicant(s)
Versus
State of M.P. & Ors. Respondent(s)
WITH
Original Application No. 33/2014 (THC)
Maa Narmada Pradushan Niyantrak Applicant(s)
Evam Vikas Samiti & Ors.
Versus
State of M.P. & Ors. Respondent(s)
WITH
Original Application No. 03/2015 (CZ)
Paryavaran Avam Manav Sanrakshan Samitey Applicant(s)
(Narmada River, Jabalpur)
Versus
State of M.P. & Ors. Respondent(s)
Date of hearing: 29.07.2021
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Applicant(s): Mr. Sachin Dave, for applicant
For Respondent(s) : Mr. Sachin K. Verma, Adv
Mr. Om Shankar Shrivastava, Adv
Mr. Yadvendra Yadav, Adv
Ms. Parul Bhadoria, Adv
1
ORDER
"Gange Cha Yamune Chaiva Godavari Saraswathi Narmade Sindhu Kaveri Jalesmin Sannidhim Kuru"
1. This was the culture where Rivers in India are taken as a lifeline and are respected and worshipped as mother goddess. Narmada, one of the most important rivers in India, which originates from Amarkantak, Madhya Pradesh in Central India and flows through the Maikal and Satpura Hills is the 3rd longest river in India, but is deteriorating due to the release of industrial and domestic waste water, agriculture runoff. The matter was taken up in Execution Application No. 01 of 2021 in Original Application No. 13/2021(CZ) and vide order dated 16th July, 2021, it was observed as follows:
1. The matter relates to remedial action for rejuvenation of polluted river Narmada and stretches for which major steps for preventing discharge of industrial and domestic waste in rivers or drains is connected thereto. Other steps which are required to be taken include preventing dumping of solid waste, plastic, hazardous, bio-medical and electronic wastes, regulation of flood plain zones, by keeping catchment areas free from encroachments, maintaining environment flow by adopting appropriate water conservation practices and other steps, controlling extraction of ground water, afforestation, etc.
2. The latest report in the Article "Water quality assessment of Narmada River along the different topographical regions of the central India Deepak Gupta, Reetika Shukla, Mahesh Prashad Barya, Gurudatta Singh & Virendra Kumar Mishra (Pages 202-212) (received 13 Apr 2020, Accepted 15 Oct 2020, Published online: 17 Nov 2020 https://doi.org/10.1080/11104929.2020.1839345)"
reveals that "Rivers are contaminated due to discharges of organic and inorganic contaminants, virus and bacteria. Urbanized part of India generate large volume of sewage which are often discharged into water bodies without proper 2 treatment, agriculture practices in watersheds are also major sources of river pollution. Narmada is one of the most important rivers in India, which originates from the Amarkantak, Madhya Pradesh in central India, and flows through the Maikal and Satpura Hills. It flows 1,312 kms. west through the states of Madhya Pradesh, Maharashtra, and Gujarat, of which 1,077 km is within Madhya Pradesh (Gupta, Chakrapani, Selvaraj, & Kao, 2011). In its upper reaches, around Amarkantak, the Narmada is surrounded by dense forest. It runs from the hills of Amarkantak, toward Dindori, Mandala, Jabalpur, Narsinghpur, and Hoshangabad, fulfilling the water demands of the large population as it passes.
The Narmada is facing stress from several pollution sources between its origin at Amarkantak and Hoshangabad. Threats may arise from religious activities, public gatherings, bathing, and domestic effluent discharges. Approximately 100 km from its origin, agricultural activities in the Narmada watershed is intensive, which may also contribute to pollution through surface runoff. Industrial activities, restaurants, and lodges on the river banks also release sewage to the river through small drains. Major towns/cities such as Dindori, Mandala, and Narsinghpur along the river lack sewage treatment plants, making the river more vulnerable to sewage pollution. Water Quality Index as analyzed are as follows:
"WQI at site 1, 2, 3 i.e., Narmada main Kund, ram ghat, and Vivekananda ghat situated at the origin of the river were found to be in good quality because at this locations the water is in running condition without any obstructions to its flow having self-cleansing capacity, whereas at site 4 (Kapil Dhara) the water is collected through a check dam which forms a small pond again and it's overflow further continues as Narmada river, sampling at Kapildhara was possible only from this dam which remains stagnant, due to its stagnant condition water quality might be poor at this site.
Site 5 (Chandan ghat) which is about ~90 km from Kapildhara, is located in the upstream of the Dindori region, during its course it flows through the hilly regions 3 and bedrocks getting self -cleaning, with less human interaction. So, the water quality at this ghat is of good to excellent quality. Further at site 6 (Dindori Bus stand) 3 quality of water was found to be poor because at this location the river receives effluent through drains. Further, from the site (7-10) i.e., Manode, Sangam ghat, Rapta ghat, and Ranrez ghat all these ghats lie in the Mandala district which is one of the oldest towns of Madhya Pradesh, is densely populated. Municipal effluent is discharged in Narmada through the small drains in the river Narmada.
At this site, pilgrims often visit to perform ritual activities and bathing. All these activities make water quality poor at these sites. At sites (11-14) i.e., Gwari ghat; Tilwara ghat; Bheda ghat; and Barman ghat also water quality was found to be poor, this is because of the anthropogenic activities. Site 15 (Bandarbhan ghat) is located in Narsinghpur district and the water quality at this site was found to be excellent.
Water quality at sampling sites 16-17, Budhni ghat, and Sethani ghat which were situated in Hoshangabad district, at approximately 650 Km from the origin of the river Narmada were found to be poor. These sites are highly active due to human intervention and religious happenings thus polluting the river. The security paper mill in Hoshangabad also discharges its effluent in the Narmada River through a small drain near Budhni ghat which degrades its water quality. Overall poor water quality was observed during both seasons. Conclusions The physicochemical characteristics of the Narmada River have been evaluated at 17 different sampling points along the stretch of the river located between Amarkantak to Hoshangabad. Further, analyzed values were used to calculate WQI, PCA, and HCA. The calculated WQI implies that the river water quality was poor at present and is not suitable for daily needs in both seasons. Further, PCA explained three and two PCs for pre- and post- monsoon season respectively. Based on similar water quality parameters HCA generated three and two 4 groups, for the pre- and post-monsoon seasons, respectively. These groups visually reflected the spatial and temporal changes in water quality seasonally and indicated that urban pressure is mostly playing a crucial role in the alteration of its water quality. The major source of pollution was from agricultural runoff, municipal, and domestic sewage inputs. Overall it can be concluded that the water quality of the river Narmada is poor, it needs to be treated before use."
3. Non-stop sand mining, development project near rivers, de-forestation in the catchment areas and unplanned dams are killing the major rivers of Madhya Pradesh. The State is now facing an acute deficit of water. Tapti and Shipra have almost died while the Narmada River is also facing dry spells. The International Water Management Institute points out that the scarcity of water is due to the increasing dependency on the Narmada basin. In February, 2021, a report released by the Madhya Pradesh Water Resources Department said over 28 percent of dams built on the Narmada Tapti river have almost dried up with less than 10 percent of water against its holding capacity. Only 14 reservoirs out of 53 have over 90 percent of water. However, the two important dams on the Narmada- Bargi in Jabalpur and Indira Sagar Dam in Khandwa- are filled with 97 percent of its full tank level capacity.
4. The overall situation of water is also not good in the State as 71 reservoirs out of 241 have less than 10 percent of water (as per report released by the State Water Resource Department). Only 42 reservoirs have over 90 percent of water against its full capacity. The forest cover of Madhya Pradesh has been decreasing year by year. As per the latest report released by the Forest Survey of India, in 2017 the total forest cover of Madhya Pradesh was 77,414 sq km against 77,462 sq km in 2015, 77,700 sq km in 2011, and 1,35,785 sq km in 1991.
5. Big challenge for the Narmada is the dumping of untreated industrial waste and civic sewage. A study conducted by the Central Pollution Control Board (CPCB) says that the 160-km-long flow of the river from Mandla 5 to Bhedaghat and 80-km-long flow from Sethani Ghat to Nemawar are highly polluted. The CPCB has declared the entire stretch of the river flowing in Madhya Pradesh's Jabalpur district as polluted in its latest report. The paper prepared by Vichar Madhya Pradesh on Narmada River has highlighted that, there are 24 cities that discharge their polluted water without any treatment in the Narmada.
6. A total of 102 nallahs have been discharging polluted water since years. The report also pointed out the use of chemical fertilizers in farmlands near the Narmada. Illegal sand miners are active in 28 districts of Madhya Pradesh. They use boats and pipeline to excavate sands from water, which is highly objectionable and an unscientific practice. The sand absorbs water and then recharges groundwater too. This practice is destroying the natural process of the river.
7. In a study available on public domain reveals that after the lockdown, the reduced flow of industrial effluents and domestic sewage in the river has made a positive impact on the quality of the water in the river which travels 900 plus Kms. through 14 districts of Madhya Pradesh before flowing into Gujarat. A study of river water samples collected from five ghats of Hosangabad district, Collectorate, Circuit House, Post Office Sethani and Gwarighat, during lockdown the water quality was found to be improved.
2. The matter was disposed of and in all four cases the Compliance Report is submitted before this Tribunal. In the today's cause list all four cases are listed with the Original case number relating to the year 2013, 2014 and 2015. Since the matter of River Narmada is under consideration in one of the Execution Application i.e., 01 of 20201, we are of the view that the Compliance Reports which are being submitted in these applications listed today shall in future be filed in Execution Application 01 of 2021.
63. We, therefore, deem it just and proper to direct the authorities concerned to submit a Compliance Report on the following points in addition to the points on which they are submitting the Compliance Report and these are:
i. Gaps in generation and treatment of sewage/effluents by ensuring setting up of requisite number of functional ETPs, CETPs and STPs, as directed by the Hon'ble Supreme Court in (2017) 5 SCC 326.
ii. The timeline for commissioning of all STPs fixed by the Hon'ble Supreme Court, i.e., 31.03.2018, has long passed. The Hon'ble Supreme Court directed that the State PCBs must initiate prosecution of the erring Secretaries to the Governments, which has also not happened. This Tribunal has directed to monitor compliance and in the course thereof, we direct that compensation may be recovered in the manner already directed which may be deposited with the SPCB for restoration of the environment.
iii. The unutilized capacity of the existing STPs may be utilized expeditiously.
iv. To ensure that the CETP, ETPs and STPs meet the laid down norms and remedial action be taken wherever norms are not met.
v. It must be ensured that no untreated sewage/effluent is discharged into any water body. Prompt remedial action may be taken by the State PCB against non-compliant ETPs/CETPs by closing down or restricting the effluents generating activity, recovering compensation and taking other coercive measures following due process of law. vi. State Monitoring Committee may consider development of an appropriate App to enable easy filing and redressal of grievances with regard to illegal discharge of sewage/effluents.
vii. The monitoring by the State Monitoring Committee may have the target of reduction of pollution loads and improvement of water quality of rivers and coastal areas.
viii. The Chief Secretary may also monitor the setting up of the biodiversity parks, constructed wetlands and other alternative measures to reduce pollution load.7
ix. The Chief Secretary may also monitor demarcation of flood plain zones.
4. Learned Counsel appearing for the Madhya Pradesh Pollution Control Board, Ms. Parul Bhadoria has submitted that notices have been issued to the defaulting Municipal Corporations and polluters with regard to taking remedial actions or to pay the Environmental Compensation in light of the order passed by Hon'ble Supreme Court of India and National Green Tribunal.
Attention of learned counsel appearing for Madhya Pradesh Pollution Control Board is drawn towards the judgment of Hon'ble the Supreme Court of India passed in Criminal Appeal No. 599 of 2021 arising out of SLP (Criminal) No. 4658 of 2020 Noorulla Khan Vs. Karnataka State Pollution Control Board and Ors., where the Hon'ble the Court had directed that the sanction for prosecution for violation under Section 48 of The Water (Prevention and Control of Pollution) Act, 1974 is not required and the person / public servant violating the Water Act must be subjected to prosecution. The relevant paragraphs are quoted below:
"9. The decision relied upon by the High Court in Writ Petition No.30610 of 2008 was directly under challenge before this Court in V.C. Chinnappa Goudar v. Karnataka State Pollution Control Board1. In that decision, this Court considered the scope and applicability of Section 48 of the Water Act and found that "the Head of the Department" by virtue of deeming provision would be deemed to be guilty and, as such, the protection under Section 197 of the Code would stand excluded. The relevant discussion on the point was:
"6. As against the above submission, Mr A. Mariarputham, learned Senior Counsel for the respondent by drawing our attention to Section 5 CrPC and Section 48 of the 1974 Act, contended that under Section 48 there is a rebuttable presumption insofar as the guilt of the offence is concerned as against the Head of the Department in respect of any offence said to have been committed by any department of the Government and that, if Section 197 sanction is held to be mandatory even for proceeding against Head of the 8 Department of Government Department, the same would directly conflict with Section 5 CrPC and consequently Section 60 of the 1974 Act gets attracted. According to the learned Senior Counsel, if the application of Section 197 is held to be attracted and in the event of the sanction being refused by prosecution that by itself would be an impediment for the operation of the deemed fiction contained in Section 48 of the 1974 Act. The learned Senior Counsel, therefore, contended that in such an event there would be a direct conflict of Section 48 of the 1974 Act with Section 197 CrPC and consequently Section 60 of the 1974 Act would come into play which has an overriding effect on any other enactment other than the 1974 Act.
7. Having considered the respective submissions, we find force in the submission of Mr A. Mariarputham, learned Senior Counsel for the respondents. As rightly pointed out by the learned Senior Counsel under Section 48, the guilt is deemed to be committed the moment the offence under the 1974 Act is alleged against the Head of the Department of a government department. It is a rebuttable presumption and under the proviso to Section 48, the Head of the Department will get an opportunity to demonstrate that the offence was committed without his knowledge or that in spite of due diligence to prevent the commission of such an offence, the same came to be committed. It is far different from saying that the safeguard provided under the proviso to Section 48 of the 1974 Act would in any manner enable the Head of the Department of the government department to seek umbrage under Section 197 CrPC and such a course if permitted to be made that would certainly conflict with the deemed fiction power created under Section 48 of the 1974 Act.
8. In this context, when we refer to Section 5 CrPC, the said section makes it clear that in the absence of specific provisions to the contrary, nothing contained in the Criminal Procedure Code would affect any special or local laws providing for any special form or procedure prescribed to be made applicable. There is no specific provision providing for any sanction to be secured for proceeding against a public servant under the 1974 Act. If one can visualise a situation where Section 197 CrPC is made applicable in respect of any prosecution under the 1974 Act and in that process the sanction is refused by the State by invoking Section 197 CrPC that would virtually negate the deeming fiction provided under Section 48 by which the Head of the Department of a government department would otherwise be deemed guilty of the offence under the 1974 Act.9
In such a situation the outcome of application of Section 197 CrPC by resorting to reliance placed by Section 4(2) CrPC would directly conflict with Section 48 of the 1974 Act and consequently Section 60 of the 1974 Act would automatically come into play which has an overriding effect over any other enactment other than the 1974 Act."
10. In a subsequent decision of this Court, Karnataka State Pollution Control Board v. B. Heera Naik2, it was observed that the Commissioner of City Municipal Council and Chief Officers of the City Municipal Council would not strictly be called "Heads of the Departments" for the purposes of Section 48 of the Water Act. It was however held that such officials would still come under the provisions of Section 47 of the Water Act. The decision of the High Court quashing the complaint was thus set-aside and the concerned Magistrate was directed to proceed with the complaint.
11. What emerges from these decisions of this Court is:
a. If the violation of the provisions of the Water Act was at the hands of a Department, subject to the satisfaction of the requirements under Section 48 of the Water Act, "the Head of the Department" would be deemed to be guilty. This would of course be subject to the defences which are available to him to establish whether the offence in question was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.
b. By virtue of the decision of this Court in V.C. Chinnappa Goudar (Supra), because of deeming fiction under Section 48 of the Water Act, the protection under Section 197 of the Code would not be available and the matter ought to be considered de hors such protection.
c. If the concerned public servant happens to be a Chief Officer or Commissioner of a Municipal Council or Town Panchayat, he cannot strictly be called "the Head of the Department of the Government". Therefore, in terms of decision of this Court in B. Heera Naik (Supra), the matter would not come under 8 Section 48 of the Water Act. But the matter would come directly under Section 47 of the Water Act. According to said decision, even in such cases, the deeming fiction available under Section 47 of the Water Act would dis-entitle the public servant from the protection under Section 197 of the Code.
d. If the offenders are other than public servants or where the principal offenders are corporate entities in private 10 sectors, the question of protection under Section 197 would not arise."
5. We also direct the State Pollution Control Board to fulfill its statutory duty and legal obligation to comply the norms and provisions as contained in The Air (Prevention and Control of Pollution) Act, 1981 and The Water (Prevention and Control of Pollution) Act, 1974 and also to comply the directions issued by Principal Bench of this Tribunal in Original Application No. 593 of 2017 vide order dated 21st September, 2020. Relevant paragraphs are abstracted below:
"13. Directions in order dated 06.12.2019:
"XII. Directions:
47. We now sum up our directions as follows:
i. 100% treatment of sewage may be ensured as directed by this Tribunal vide order dated 28.08.2019 in O.A. No. 593/2017 by 31.03.2020 atleast to the extent of in-situ remediation and before the said date, commencement of setting up of STPs and the work of connecting all the drains and other sources of generation of sewage to the STPs must be ensured. If this is not done, the local bodies and the concerned departments of the States/UTs will be liable to pay compensation as already directed vide order dated 22.08.2019 in the case of river Ganga i.e. Rs. 5 lakhs per month per drain, for default in insitu remediation and Rs. 5 lakhs per STP for default in commencement of setting up of the STP.
ii. Timeline for completing all steps of action plans including completion of setting up STPs and their commissioning till 31.03.2021 in terms of order dated 08.04.2019 in the present case will remain as already directed. In default, compensation will be liable to be paid at the scale laid down in the order of this Tribunal dated 22.08.2019 in the case of river Ganga i.e. Rs. 10 lakhs per month per STP.
iii. We further direct that an institutional mechanism be evolved for ensuring compliance of above directions. For this purpose, monitoring may be done by the Chief 11 Secretaries of all the States/UTs at State level and at National level by the Secretary, Ministry of Jal Shakti with the assistance of NMCG and CPCB.
v. The Chief Secretaries may set up appropriate monitoring mechanism at State level specifying accountability of nodal authorities not below the Secretary level and ensuring appropriate adverse entries in the ACRs of erring officers. Monitoring at State level must take place on fortnightly basis and record of progress maintained. The Chief Secretaries may have an accountable person attached in his office for this purpose.
vi. Monthly progress report may be furnished by the States/UTs to Secretary, Ministry of Jal Shakti with a copy to CPCB. Any default must be visited with serious consequences at every level, including initiation of prosecution, disciplinary action and entries in ACRs of the erring officers."
6. In light of the above facts, the further proceedings in these four applications namely, (i) Original Application No. 139 of 2013 (CZ) Akhil Bhartiya Vidyarthi Parishad & Ors vs. Union of India & Ors. (ii) Original Application No. 30/2014 (THC) Shailendra Singh Bisen vs. State of M.P & Ors, (iii) Original Application No. 33/2014 (THC) Maa Narmada Pradushan Niyantrak Evam Vikas Samiti & Ors vs. State of M.P. & Ors.
and Original Application No. 03/2015 (CZ) Paryavaran Avam Manav Sanrakshan Samitey (Narmada River, Jabalpur) vs. State of M.P. & Ors are closed. Now, the Compliance Report which are being submitted by the authorities, shall in future be submitted in Execution Application No. 01 of 2021, which is listed on 17th September, 2021.
7. Learned Counsel appearing for the State of Madhya Pradesh, Madhya Pradesh Pollution Control Board and Central Pollution Control Board, Ministry of Environment, Forest and Climate 12 Change, sought a short time to file the latest status and compliance report. Accordingly, time as sought, is permitted.
Accordingly, Original Application No.139 of 2013, Original Application No.30 of 2014, Original Application No.33 of 2014, and Original Application No.03 of 2015 are consigned to record.
Sheo Kumar Singh, JM Arun Kumar Verma, EM July 29th 2021 Original Application No.139 of 2013, Original Application No.30 of 2014, Original Application No.33 of 2014, Original Application No.03 of 2015 PU 13